The Constitutionality Of Employer Covid-19 Vaccine Mandates

December 7, 2021

With the emergence of the Omicron variant of COVID-19, many employers, both public and private, are interested in their employees being vaccinated against COVID-19 to protect employees and patrons from virus transmission, and in turn, avoid potential liability for the same. To that end, a number of employers are either incentivizing or requiring vaccination against the virus—and sometimes facing employee backlash. The mandatory vaccination laws have been hotly-debated since the COVID-19 pandemic struck, and approximately two years of litigation on the subject has provided some clarity for employers. Employer-mandated vaccinations are largely being upheld in American courts. Below, you will see a brief legal history of such mandates in the U.S. and overview of the laws as applied to COVID-19 vaccine mandates.


The legal issues surrounding mandatory vaccination are not new to the United States. Back in 1905, the U.S. Supreme Court upheld the prosecution of an individual who refused to get a smallpox vaccination, in spite of a Massachusetts vaccine mandate. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).  In that case, the defendant questioned the constitutionality of the mandate, claiming that vaccinations “quite often” proved to be harmful to a person’s health. Id. at 36. The Court unequivocally upheld the constitutionality of the mandate, holding, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. In other words, the Court found that, generally speaking, vaccine mandates are legal. 


Based on the above, employers have been overwhelmingly successful in defending against constitutional attacks against vaccine mandates, as long as they allow reasonable accommodations for individuals who cannot get the vaccine based on a disability or a sincerely held religious belief, practice, or observance. See EEOC Guidance. For instance, the U.S. Supreme Court recently denied review of the 7th Circuit’s decision upholding Indiana University’s requirement that all students be vaccinated against COVID-19 unless they are exempt, as noted above. Klaasen v. Trustees of Indiana Univ., 7 F.4th 592 (7th Cir. 2021) (cert. denied). The 7th Circuit ruled that in light of the Jacobson case, “there can’t be a constitutional problem with vaccination against SARS-CoV-2.” Id. at 593. Thus, as long as an employer provides reasonable accommodations for individuals who cannot get the vaccine as noted above, employers will likely prevail when manding the COVID-19 vaccine and/or the vaccine booster(s).


Though these cases have been primarily employer-friendly, it is important to remember the following:

  • Ensure that vaccine mandates are applied in a way that does not treat employees differently based on disability, race, color, religion, sex, national origin, age, or genetic information.
  • Make sure supervisors are trained on how to recognize an ADA reasonable accommodation for those individuals who may be entitled to a reasonable accommodation against vaccination.
  • If an employee requests an accommodation, make sure you engage in the ADA’s interactive process with that employee to determine whether they are entitled.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.